STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-839 consolidated with 04-976
KEVIN D. LAWSON, ET AL.
VERSUS
MITSUBISHI MOTOR SALES OF AMERICA, INC., ET AL.
************
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, NO. 99-3876, HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Michael G. Sullivan, Judges.
WRIT GRANTED; AFFIRMED; AND RENDERED.
Rex D. Townsley The Townsley Law Firm 3102 Enterprise Boulevard Lake Charles, Louisiana 70601 (337) 478-1400 Counsel for Plaintiffs/Appellants: Kevin Lawson, Individually and on behalf of his minor son, Dillon Lawson Kelli Lawson, Individually
Keith W. McDaniel Lance B. Williams McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel 434 North Columbia Street, Suite 200 Covington, Louisiana 70433 (504) 831-0946 Counsel for Defendants/Appellants: Mitsubishi Motor Sales of America, Inc. Mitsubishi Motor Manufacturing of America, Inc. Tokio Marine and Fire Insurance Company, Ltd. SULLIVAN, Judge.
In this products liability case, Mitsubishi Motors North America, (Mitsubishi)
appeals the trial court’s grant of the plaintiffs’ motion for judgment notwithstanding
the verdict (JNOV) on the issue of liability. The plaintiffs, Kevin and Kelli Lawson,
appeal the trial court’s failure to determine causation and damages when it considered
and granted their motion for JNOV on the issue of liability. For the following
reasons, we affirm the JNOV and award damages.
Facts and Procedural Background
In September 1997, Kevin and Kelli Lawson purchased a 1996 Mitsubishi
Galant with 21,930 miles on the odometer from J.P. Thibodeaux Mitsubishi in Lake
Charles. Kelli was the primary driver of the Galant, driving it to and from work and
for errands. On Saturday, January 9, 1999, as she was driving away from her home
to run errands, she honked the horn. When she did, the Galant’s driver-side air bag
deployed, injuring both of Kelli’s thumbs and her right wrist. Kevin and Kelli’s two
and one-half year old son, Dillon, was in the car with Kelli; he was not physically
injured.
Kevin and Kelli filed suit against Mitsubishi and its insurer, Tokio Marine and
Fire Insurance, alleging that the deployment of the air bag resulted from a
manufacturing defect and that warnings regarding the air bags were inadequate
pursuant to the Louisiana Products Liability Act, La.R.S. 9:2800.51-.60. The matter
was tried to a jury from September 29 through October 8, 2003. The jury rendered
a verdict in favor of Mitsubishi, finding that the Galant was not unreasonably
dangerous in construction and that it was not unreasonably dangerous in failing to
prove an adequate warning regarding the air bag. Kevin and Kelli filed a motion for JNOV, and Mitsubishi filed a motion to tax
costs. After a hearing on the motions, the trial court took the matter under
advisement. On January 26, 2004, the trial court issued its Judgment and Reasons in
which it granted the motion for JNOV on the issue of liability only and denied
Mitsubishi’s motion to tax costs. The trial court granted a new trial “on the sole
issues of causation and damages” and, alternatively, granted a new trial in the event
the JNOV was reversed on appeal.
Kevin and Kelli appeal, assigning as error the trial court’s denial of the JNOV
on the issue of causation and damages. Mitsubishi appeals and assigns as error the
trial court’s grant of the JNOV. Mitsubishi also filed a writ application in which it
asserts that the trial court’s grant of a new trial was error. See Lawson v. Mitsubishi
Motor Sales of America, Inc., 04-976 (La.App. 3 Cir. __/__/04), ___So.2d ___.
Consideration of the writ application has been consolidated with this appeal.
Discussion
Judgment Notwithstanding the Verdict
Louisiana Code of Civil Procedure article 1811 governs motions for JNOV.
A JNOV should be granted “only when the evidence points so strongly in favor of the
moving party that reasonable men could not reach different conclusions, not merely
when there is a preponderance of evidence for the mover.” Anderson v. New Orleans
Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). If the motion is opposed with
evidence “which is of such quality and weight that reasonable and fair-minded men
in the exercise of impartial judgment might reach different conclusions, the motion
should be denied.” Id. The credibility of the witnesses is not to be considered by the
reviewing court, and “all reasonable inferences or factual questions should be
2 resolved in favor of the non-moving party.” Id. On appeal, the same criteria are
applicable to determine whether the motion was properly granted. Id. If “reasonable
men in the exercise of impartial judgment might reach a different conclusion,” the
motion was erroneously granted. Id.
Liability
The trial court granted the motion for JNOV. Applying the doctrine of res ipsa
loquitur, the trial court concluded that the jury’s verdict was unreasonable because
the Lawsons “proved through competent evidence that, more probable than not, the
clockspring was misaligned at the time of manufacture, and that this was the most
plausible explanation for this highly unusual accident.” Mitsubishi argues that the
trial court incorrectly applied the Louisiana Products Liability Act (LPLA) and the
doctrine of res ipsa loquitur to the motion for JNOV.
The Louisiana Products Liability Act
The LPLA establishes the exclusive theories of recovery against manufacturers
for damage caused by their products. La.R.S. 9:2800.51-.60. Section 2800.54
provides that a manufacturer is liable for damage caused by a characteristic of a
product which renders it “unreasonably dangerous.” La.R.S. 9:2800.54(A). There
are only four ways in which a product can be unreasonably dangerous: construction
or composition; design; an adequate warning concerning use of the product was not
provided; or it does not conform to an express warranty made by the manufacturer.
La.R.S. 9:2800.42(B).
On appeal, the Lawsons assert that the Galant was unreasonably dangerous in
construction or composition. A product is unreasonably dangerous in construction
or composition “if, at the time the product left its manufacturer’s control, the product
3 deviated in a material way from the manufacturer’s specifications or performance
standards for the product or from otherwise identical products manufactured by the
same manufacturer.” La.R.S. 9:2800.55.
Res Ipsa Loquitur
A plaintiff’s burden of proof in a civil suit is generally preponderance of the
evidence. He can satisfy his burden of proof with direct or circumstantial evidence.
Sonnier v. Bayou State Mobile Homes, Inc., 96-1458 (La.App. 3 Cir. 4/2/97), 692
So.2d 698, writ denied, 97-1575 (La. 10/3/97), 701 So.2d 201. Circumstantial
evidence is “evidence of one fact, or of a set of facts, from which the existence of the
fact to be determined may reasonably be inferred.” W. PAGE KEETON, ET AL.,
PROSSER & KEETON ON THE LAW OF TORTS § 39, at 242 (5th ed. 1984). When direct
evidence of a defendant’s negligence is not available, the doctrine of res ipsa loquitur
assists the plaintiff in presenting a prima facie case of negligence. Cangelosi v. Our
Lady of the Lake Reg’l Med. Ctr., 564 So.2d 654 (La.1989). Res ipsa loquitur is
applicable when the circumstances surrounding an accident are so unusual as to give
rise to an inference of negligence or liability on the part of the defendant and that,
under such circumstances, the only reasonable and fair conclusion is that the accident
resulted from a breach of duty or omission on the part of the defendant. Id.
If applicable, the doctrine allows the trier of fact to infer negligence from the
circumstances of the event. Id. Generally, three criteria must be present for the
doctrine to be applicable: 1) the facts must indicate that the plaintiff’s injuries would
not have occurred in the absence of negligence; 2) the plaintiff must establish that the
defendant’s negligence falls within his scope of duty to plaintiff; and 3) the evidence
should sufficiently exclude inference of the plaintiff’s own responsibility or the
4 responsibility of others besides defendant in causing the accident. Id. Because the
standard of proof is preponderance of the evidence, not proof beyond a reasonable
doubt, the plaintiff’s evidence need only exclude all other reasonable explanations for
his injuries; it need not “conclusively exclude all other possible explanations for his
injuries. . . .” Id. at 664.
The doctrine of res ipsa loquitur is applicable to product liability cases. See
State Farm Mut. Auto. Ins. Co. v. Wrap-On Co., Inc., 626 So.2d 874 (La.App. 3 Cir.
1993), writ denied, 93-2988 (La. 1/28/94); 630 So.2d 800; see also Precht v. Case
Corp., 99-1296 (La.App. 3 Cir. 2/16/00), 756 So.2d 488, writ denied, 00-0791 (La.
5/5/00), 761 So.2d 546.
The Lawsons’ Galant is equipped with dual air bags. Dual air bags are
constructed to deploy simultaneously1 in frontal type collisions where the automobile
decelerates rapidly, not individually and not when the horn is honked. The
deployment of Kelli’s air bag when she honked her horn is extremely unusual. There
was no evidence of any prior occurrence of this nature, and none of the experts
questioned on the issue had any knowledge of an air bag deploying in this manner.
The Lawsons presented the testimony of William Rosenbluth, an expert in the
forensic analysis of electronic component vehicle controls and failure analysis of air
bag systems, to establish that the Galant was unreasonably dangerous in construction
or composition. Mr. Rosenbluth opined that the Galant’s clockspring was misaligned
at the time it was installed, that, as a result of the misalignment, the clockspring
1 Dual air bags will not deploy at the same time when the passenger air bag has an on/off switch and the switch is turned off. There is no evidence that the Galant was equipped with an on/off switch for the air bags.
5 progressively deteriorated, causing it to fail, and that the failure of the clockspring
caused Kelli’s air bag to deploy when she honked the horn.
A clockspring is a device which bundles together electrical wires for
automotive equipment that is controlled from the steering wheel, e.g., cruise controls,
blinkers, and radios. It is installed in the steering column under the horn and looks
similar to an octopus: it has a round central portion from which independent
insulated bundles of wires extend like tentacles. This construction maintains the
integrity of the electrical wires and prevents loss of contact in the electrical circuits
when the steering wheel is turned.
Mr. Rosenbluth explained that there are two circuits for the dual air bags of the
Galant. These circuits are parallel and act as one switch. When closed, the switch
activates the driver and passenger air bags at the same time. Therefore, these circuits
were not operating properly when only the driver-side air bag deployed.
Mr. Rosenbluth testified that the clockspring totally malfunctioned when he
investigated the Galant and that it was the only component in the electrical system
that his investigation revealed was not functioning properly. He explained that fault
codes are stored in the computer equipment of the Galant and that Mitsubishi
downloaded the codes in an attempt to determine the cause of the deployment.
Dr. Rosenbluth further testified that there were six fault codes and that all of them
were associated with the clockspring doing things that “weren’t right.”
Mr. Rosenbluth pointed to a Technical Service Bulletin (TSB) issued by
Mitsubishi in 1999 as additional support for his conclusion that the clockspring
malfunctioned as a result of misalignment. TSBs are prepared by manufacturers and
sent to repair technicians concerning repair issues. Mr. Rosenbluth explained that the
6 TSB at issue informed technicians that there could be an open circuit which might
cause an air bag not to deploy as expected and that, if an open circuit was found in
the clockspring, misalignment could be the problem. In his opinion, the clockspring
failed here as contemplated by the TSB, but in a different manner—the air bag
deployed instead of not deploying. Mr. Rosenbluth found nothing, other than the
misalignment of the clockspring, which would have caused Kelli’s air bag to
inadvertently deploy, and he found no evidence of anything occurring between the
factory and the accident which would have changed the condition or alignment of the
clockspring.
David Bliese, a mechanical engineer for Mitsubishi, testified regarding the
quality control checks that vehicles and their component parts go through during the
manufacturing process. He further testified that Mitsubishi’s documentation of the
Galant did not reveal any problems identified during the inspections performed on it
during manufacturing. With regard to the clockspring, he testified that clocksprings
are manufactured and supplied to Mitsubishi by another entity. The supplier aligns
the clocksprings during the manufacturing process, locks them, and inserts a pin to
keep them aligned during shipping and installation. When the clocksprings are
received by Mitsubishi, arrows on the exterior of the clocksprings indicate that they
are properly aligned and Mitsubishi does not verify that they are properly aligned and
centered before installing them. Mr. Bliese contradicted Mr. Rosenbluth’s testimony
that the TSB at issue addressed misalignments of clocksprings which may have
occurred during the manufacturing process, testifying that TSBs are directed to repair
personnel to address repair concerns only, not manufacturing concerns, and that
concerns which arise during the manufacturing process are addressed only within the
7 manufacturing plants. However, he did admit that a TSB may precede a recall, which
indicates that TSBs do address manufacturing concerns.
Michael Klima, an expert in mechanical engineering with a specialty in
automobile design and manufacturing assembly as related to secondary restraint
systems, testified on behalf of Mitsubishi. He inspected the Galant and found nothing
consistent with it having been in a collision which would have caused the driver-side
air bag to deploy. Mr. Klima testified that x-rays of the clockspring revealed “a
disruption” in the wiring and that “something wasn’t right” with it. He also testified
that the clockspring “did not perform correctly” and that it “stopped performing as it
should have during the life of the vehicle.” He further testified that misalignment of
a clockspring can occur, if the shipping lock installed by the manufacturer comes off
before it is installed in the vehicle, and that misalignment can cause something
unfortunate, like the deployment in this case, to happen. Mr. Klima would not agree
that a manufacturing defect caused this deployment because the clockspring had been
removed from the Galant and, in his opinion, could have been misoriented by people
handling it during the investigation of the accident.
Mitsubishi theorized that there was work performed on the Galant which could
have caused the clockspring to malfunction. It points to the fact that the Galant was
owned by three parties, one a rental company, and to the lack of documentation by
the Lawsons of their maintenance on the Galant to argue that the Lawsons have not
excluded such work as the cause of the clockspring’s malfunction. Specifically,
Mitsubishi insinuates that because the Lawsons drove the car for more than 25,000
miles, but did not produce receipts for oil changes or other repairs, that they are
“hiding” something. Mr. and Mrs. Lawson testified that, other than routine oil
8 changes, they did not have any work performed on the Galant. Mr. Lawson testified
that he had changed the oil himself and had had it changed by third parties, but, on
those occasions, he did not keep the receipts.
While Mitsubishi asserts that there may have been work performed on the
Galant which caused the misalignment of the clockspring, it does not point to any
specific repair which would have misaligned the clockspring. Furthermore, there is
no evidence of any such work having been performed, just inferences that some repair
work may have been performed and that if any repair work was performed it may
have misaligned the clockspring. To defeat the application of the doctrine of res ipsa
loquitur, an inference must be reasonable. These assertions are not reasonable under
the evidence presented.
Mr. Rosenbluth testified that he knew of only two things that could have
caused a misalignment of the clockspring after it was installed by the factory and that
there was no evidence that either of these occurred. He also testified that, because the
Galant had a warranty of five years or 60,000 miles, any necessary repairs would have
been warranty work and that one would reasonably expect an owner to have warranty
work performed at a dealer at no charge instead of paying for it. There is no
documentation of any warranty work having been performed on the Galant.
As part of their investigation of the accident, the Lawsons had the Galant
examined by two electrical automotive mechanics who do air bag replacements. The
mechanic who removed the clockspring from the Galant testified in detail regarding
the process that he followed, explaining that the steering column must be removed
before the clockspring can be removed and that when he dismantled the steering
column he could hear the paint on the steering column screws “pop” as he loosened
9 them. This popping sound indicated to him that the screws had not been removed
since it left the factory, and he concluded that the steering column had not been
opened after it left Mitsubishi.
Mitsubishi also asserts that diagnostic information downloaded from the Galant
indicates the warning light for the SRS, air bags, had been illuminated for 7,737
minutes before the accident, that the Lawsons should have taken the Galant to a
Mitsubishi dealer to have it checked as instructed by warnings contained in the
Owner’s Manual, the glove box, and the driver side visor, and that, if they had, any
problem with the air bags would have been identified and repaired. Kevin, Kelli,
Kelli’s sister, Kim, and Kelli’s father testified that they drove the car before the
accident and never saw the SRS warning light illuminated. Kelli’s father drove the
Galant the morning of the accident and testified that he did not see the SRS warning
light illuminated. Mitsubishi urges that, because the SRS warning light was
illuminated after the accident, it was illuminated before the accident; therefore, the
Lawsons should have seen it. However, Mr. Rosenbluth testified that the accident
itself would have caused the SRS warning light to illuminate, and Mr. Klima admitted
that, if the key had been left in the “on” position after the accident, the 7,737 minutes
could have accrued after the accident.
Gary Nelson, an expert in safety engineering, human factors, and safety
management testified for the Lawsons. He testified that a warning, such as the SRS
warning light, does not warn against a manufacturing defect. Alan Dorris, an expert
in human factors, ergonomics, and warnings who testified for Mitsubishi, agreed that
a manufacturing defect is not a warning issue. However, Mr. Dorris further testified
that a warning light “indicates circumstances that may include manufacturing issues”
10 and alerts the driver that the condition needs to be addressed, i.e., “if you know
something is wrong, you should fix it.” The Lawsons argue that Mr. Dorris’ opinion
is without merit because the SRS warning light warns of the potential non-
performance of the air bags in a collision, not that there is a defect in the car which
could result in deployment of the air bag when the horn is honked.
The Owner’s Manual defines the SRS to include the SRS warning light and air
bag modules and states that “[t]he air bags are designed to inflate only in certain
moderate to severe frontal collisions.” There is no information in the Owner’s
Manual or the other warnings that an air bag can deploy when the horn is honked or
that the SRS warning light is intended to warn that an air bag can deploy in any
situation other than a moderate to severe frontal collision. The LPLA provides that
a warning is intended to “lead an ordinary reasonable user . . . to contemplate the
danger in using . . . the product and to either decline to use it or, if possible, to use
or handle the product in such a manner as to avoid the damage for which the claim
is made.” La.R.S. 9:2800.53(9) (emphasis added).
The information provided by Mitsubishi to the Lawsons would cause them to
contemplate that continued use of the Galant without having the SRS system checked
could result in them being harmed by non-deployment of the air bags in a moderate
or severe frontal collision; it would not lead them to contemplate that continued use
of the Galant without having the SRS system checked could result in them being
harmed by deployment of the driver-side air bag when the horn is honked.
Accordingly, we conclude that, even if the SRS warning light was illuminated before
the accident, the Lawsons’ failure to bring the Galant to the dealer to have the SRS
system checked is not an impediment to their recovery.
11 Our review of the evidence reveals that the trial court properly applied the
doctrine of res ipsa loquitur to the facts herein and properly granted the motion for
JNOV. It is clear that Kelli’s injuries would not have occurred in the absence of
negligence and that installation of a properly aligned clockspring in the Galant is
within Mitsubishi’s scope of duty to the Lawsons. The evidence excludes any
reasonable inference of anything other than misalignment of the clockspring causing
Kelli’s air bag to deploy and establishes that this misalignment, more probably than
not, occurred during the manufacturing process. There is no evidence that anything
other than the clockspring caused the air bag to deploy as it did, and there is no
reasonable inference that anything occurred after the manufacturing process which
would have caused the air bag to deploy as it did. Therefore, we agree with the trial
court that the only conclusion reasonable men could reach in this case is that Kelli’s
injuries were caused by a manufacturing defect in the Galant.
Mitsubishi urges that the trial court improperly applied the doctrine of res ipsa
loquitur, noting that the doctrine allows, but does not require, an inference of
negligence. In our view, Mitsubishi’s argument is simply another attack on the trial
court’s grant of the motion for JNOV. The trial court determined that the facts of this
case warranted application of the doctrine and that through application of the doctrine
the Lawsons proved by a preponderance of the evidence that the Galant contained a
defect. Consequently, the trial court concluded that the jury ignored its instruction
on the doctrine of res ipsa loquitur and that its failure to apply the doctrine in this
case was unreasonable. For the reasons previously discussed, we agree and find no
merit in this argument.
12 Damages
In its writ application, Mitsubishi urges that the record contains all of the
evidence necessary to decide the issues of causation and damages; therefore, remand
of this matter for a determination of these issues as ordered by the trial court is
unnecessary. We agree, and the Lawsons agree. The writ is granted. See La.Code
Civ.P. art. 2164; Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975); Gordon v. Willis
Knighton Med. Ctr., 27,044 (La.App. 2 Cir. 6/21/95), 661 So.2d 991, writs denied
95-2776, 95-2783 (La. 1/26/96), 666 So.2d 679.
Kelli
Kelli seeks general damages for pain and suffering and special damages for
past and future medical expenses, past lost wages, and loss of earning capacity.
When her air bag deployed, Kelli did not know what had happened, except that she
was in excruciating pain. She was panicked and screaming.
Both of her thumbs were injured, the right worse than the left. Immediately
after the accident, she went to the hospital emergency room where it was determined
that her thumbs were fractured. Both thumbs were wrapped, and she was sent home
with instructions to go to an orthopedic surgeon the following Monday. Kelli saw
Dr. Dale Bernauer, an orthopedic surgeon, on Monday, January 11, 1999.
Dr. Bernauer testified that both of Kelli’s thumbs were fractured and that she was in
a lot of pain on her first visit. Due to her injuries, Kelli could not use her hands, and
Dr. Bernauer described her as “helpless.”
Dr. Bernauer described the fracture of her left thumb as minimal. He splinted
her thumb, and it healed well. Her right thumb was much worse. Her right thumb
was torn off the bone, and the bone was broken. Dr. Bernauer operated and inserted
13 pins in the right thumb to hold the bone together. Her thumb and wrist were casted,
and she was required to wear a sling to prevent the pins from dislodging.
Kelli’s right thumb and wrist were in a cast for six weeks. Once the pins were
removed from her right thumb and she began moving it, she did not regain use of it
as quickly as Dr. Bernauer expected. Physical therapy did not provide much relief,
and Kelli developed right wrist pain. Dr. Bernauer believed she was developing
reflex sympathetic dystrophy, a malfunctioning of the nerves. He testified that Kelli
was in much pain and that it was impossible for her to work at that time.
Kelli felt that Dr. Bernauer was not adequately addressing her complaints of
pain in her right wrist, and, in June 1999, she went to Dr. Darrell Henderson, a plastic
and reconstruction surgeon, for a second opinion. During his thirty plus years of
practice, Dr. Henderson has developed an emphasis on surgery of the hand and wrist.
Dr. Henderson explained that Kelli’s right thumb suffered a severe break at the
bottom of the bone, where an important ligament attaches to keep the bone from
going too far sideways. He further testified that it takes a tremendous amount of
force to break the bone there because the ligament is literally pulled off the bone and
that, if there is enough force to break the thumb, many times it will injure the radial
side of the wrist. Dr. Henderson was not surprised that Kelli did not complain of pain
in her right wrist until she began physical therapy after her right thumb was healed
and the cast was removed because her wrist was immobilized with her thumb until
then.
Initially, Dr. Henderson believed that Kelli’s pain was caused by an incipient
ganglion cyst between the scaphoid and lunate bones of the wrist which was pushing
those bones apart. In July 1999, he did surgery and determined that a tear in the
14 scapholunate ligament, not a cyst, was causing her pain. He sutured the tear, hoping
it was a solid repair which would allow good healing. Dr. Henderson explained that,
due to the length of time between the accident and the repair, there was a fifty percent
chance that the repair would not be successful; however, he did the surgery, hoping
to preserve Kelli’s wrist and to avoid the need for a fusion in the future.
Unfortunately, the surgery was not successful, and Kelli continues to suffer pain.
Dr. Henderson has prescribed Celebrex or Vioxx daily for the rest of Kelli’s
life to reduce inflammation and pain in her wrist, explaining that movement of her
wrist will cause arthritis to develop and, eventually, she will have constant pain. He
testified that, because of the arthritis she will undoubtedly develop, it is just a matter
of time until she will require a partial fusion of her wrist and that the less she uses her
wrist, the longer she will be able to go without a partial fusion. According to
Dr. Henderson, a partial fusion will relieve 95-97% of Kelli’s pain but will allow her
only 50% movement of her wrist; it requires one to one and one-half years for
recovery. Approximately one year later, hardware installed during the fusion will
have to be removed. Dr. Henderson further testified that a partial fusion usually lasts
about ten years. Because of Kelli’s young age at the time of her injury, twenty-four,
he is of the opinion that she will ultimately require a full fusion, which will greatly
restrict her use of her right hand. Physical therapy will be required, and the hardware
will have to be removed approximately one year later. Dr. Henderson also testified
that Kelli will probably require a carpal tunnel release after the full fusion.
Dr. Henderson explained that he recommended a partial fusion then a full
fusion, rather than a full fusion only, because a full fusion will restrict Kelli’s ability
to do much of the intricate work that women do with their hands on a daily basis. He
15 also recommended routine, ongoing care for Kelli, including return visits every six
months with fluoroscopies and range of motion and strength determinations.
Mitsubishi questions whether Kelli’s injuries are as severe as she claims or
simply a means for her to stay home with her children; she has had two children since
the accident. Kelli was sent to Dr. Eric George, a plastic surgeon, and Paul Fontana,
a physical therapist, for independent medical examinations. The physical therapist’s
report was utilized by Dr. George and Karen Keller, Mitsubishi’s vocational
rehabilitation expert, to form their opinions.
Dr. George questioned the extent of Kelli’s injuries and testified that she did
not exhibit full effort during his examination, indicating to him that she was a
malingerer and that she magnified her symptoms. He also questioned the treatment
recommended and provided by Dr. Henderson, testifying that the injury to Kelli’s
right thumb was so well-healed that he could not determine that it had been broken.
In his opinion, she had only a 2% impairment of her right thumb. With regard to her
right wrist, he testified that there were very little pathophysiological findings to
indicate that it was injured. While he found some residual stiffness, he was of the
opinion that Kelli did not require any future treatment. Additionally, he testified that
there was no evidence in Kelli’s medical treatment that she suffered a torn ligament
as a result of this accident. Specifically, he testified that he believed that, if Kelli had
a scapholunate ligament injury, it would have taken precedence over her broken
thumbs because it is such a painful injury.
Dr. Bernauer was questioned regarding Dr. Henderson’s treatment of Kelli’s
wrist injury. He testified that Dr. Henderson’s finding of a scapholunate ligament
injury was consistent with his findings, and he agreed with Dr. Henderson that Kelli’s
16 injury would limit her ability in the job market. However, he testified that the repair
could not be accomplished by simply suturing the torn ligament, as described by
Dr. Henderson, because it is too small.
Dr. Henderson is Kelli’s treating physician and has many years of experience.
He thoroughly explained his findings and why the injury warranted the treatment he
provided. The surgery revealed the true cause of Kelli’s continued wrist pain, and he
was the one who performed the surgery. We find no merit in the criticism of
Dr. Henderson’s prior course of treatment and recommended future treatment for
Kelli.
Kelli, Kevin, and Kelli’s sister, Kim, testified regarding Kelli’s injuries and the
effect they have had on her. As Dr. Bernauer testified, Kelli was helpless and totally
dependent on others immediately after her accident. While her left thumb healed
fairly quickly, she continued having pain in her right hand. She went to physical
therapy for six weeks for her right thumb and hand, which she testified was extremely
painful. She testified that the more she tried to get back into a regular routine after
the accident, the more pain she suffered. She continues to suffer pain and instability
in her wrist. She testified that sometimes her right wrist and hand get so stiff that she
has to run hot water over them to relieve the stiffness.
In November 1999, Kelli attempted to return to her job at the Fourteenth
Judicial District Clerk of Court’s office. Kelli and her supervisor testified that she
was unable to perform the job duties of the position she held at the time of her
accident and that the other positions she attempted to perform, even though modified
to some extent, required her to use repetitious movements of her right hand which
caused her pain. Kelli testified that she had to take frequent breaks to relieve the
17 cramps and stiffening that occurs when she uses her right hand. She also testified that
she attempted performing her work with a splint on her wrist but could not because
it hampered her work performance. Kelli explained that she left her job at the Clerk
of Court’s office because she could not perform her work without pain and she feared
that her hand would worsen and require surgery sooner than estimated by
Dr. Henderson. Kelli and Kevin testified that she had planned to work in the Clerk
of Court’s office until she could retire.
Dr. Henderson testified that most of the jobs females customarily perform are
not good for Kelli’s wrist because they require repetitious movement of the hands
which will ultimately lead to a partial fusion and a total fusion at earlier ages.
Consequently, he explained that Kelli can work, but her ability to do so is reduced.
He restricted her employment to light to sedentary positions with limited repetitious
movement.
Kelli is limited in the activities she can do at home: she can wash and dry
laundry but cannot fold it; she cannot vacuum or mop the floors; she must take
frequent breaks during her daily routine to relieve her right wrist; she has had to
modify the way she picks up her children, putting her right arm under their arm and
lifting with her elbows instead of her wrists; and she cannot play with her children as
she would if she had not received this injury. She can no longer enjoy her hobbies
of bowling, cross-stitching, and gardening, and her ability to write with her right hand
is limited.
Kelli’s continuing problems with pain in her right hand limit her ability to care
for herself and her family and work outside the home. She is right hand dominant and
has tried to become more efficient using her left hand to reduce the pain in her right
18 wrist which occurs with use. She often wears a brace, yet her wrist still hurts and
swells. She still requires much assistance from Kevin and Kim. Kim testified that
Kelli attempts to do the same things she did before the accident, but she pays for it
with pain and cramps.
Kelli suffered two very painful injuries in the accident. One of those injuries
has limited her ability to work, interact with her family, and enjoy her hobbies.
Dr. Henderson’s testimony reflects that she has much pain and suffering and greater
limitation ahead of her. She has undergone three surgical procedures and faces
another five. We find that the sum of $200,000.00 will fairly compensate her for her
injuries. We recognize that this amount is higher than reported awards for injuries
requiring a partial or complete fusion for a wrist; however, Kelli is much younger
than any of the plaintiffs in those cases, and she will have to undergo more medical
treatment in the future than the plaintiffs in those cases.
Damages for past and future medical expenses and for past lost wages and loss
of earning capacity are special damages. They can be established to a reasonable
mathematical certainty or with relative certainty. Wainwright v. Fontenot, 00-492
(La. 10/17/00), 774 So.2d 70; Whitehead v. Kansas City S. Ry. Co., 99-896 (La.App.
3 Cir. 12/22/99), 758 So.2d 211, writ denied, 00-209 (La. 4/7/00), 759 So.2d 767.
Kelli’s past medical expenses are documented as $29,387.31. Pursuant to
Dr. Henderson’s testimony, Dr. Bernard Pettingill, Jr., the Lawsons’ economist,
testified that the present day value of Kelli’s future medical expenses is $182,150.00.
Dr. Pettingill calculated Kelli’s past lost wages and benefits for the periods January 9,
1999 through November 1999 and May 2000 through the trial to be $61,319.00. This
figure represents Kelli not earning any wages for the first period due to the accident
19 and her injuries and her earning $5.15 to $6.00 per hour for the second period. We
award these amounts as special damages.
Kelli also seeks an award for loss of earning capacity. Her job with the Clerk
of Court required repetitive movement of her hands, especially her right hand which
is her dominant hand. She returned to work but was unable to continue, even though
her employer attempted to accommodate her needs.
In Batiste v. New Hampshire Insurance Co., 94-1467, p. 3 (La.App. 3 Cir.
5/3/95), 657 So.2d 168, 170, writ denied, 95-1413 (La. 9/22/95), 660 So.2d 472
(citation omitted), this court explained the relationship between income and earning
capacity:
[E]arning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiff’s earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiff’s lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity.
In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiff’s current condition disadvantages him in the work force. The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.
Kelli urges that she should be awarded $882,074.00 for loss of earning capacity
because she cannot return to employment. This figure represents her salary and fringe
benefits from the time of trial until she is sixty-five, the duration of her work life.
Dr. Henderson testified that Kelli can perform job duties that are classified as
sedentary or light and do not require repetitive movements of her right hand;
however, she urges that she would not be hired for any job she may be qualified for
20 because of these limitations, combined with her need for continuing medical
treatment and the pain associated with her injury.
The parties presented the testimony of vocational rehabilitation counselors on
this issue; their opinions were diametrically opposed. Glenn Hebert testified that
Kelli is “employable” but not “placeable,” while Karen Keller testified that she could
return to her position with the Clerk of Court with some modifications and that she
could even earn greater wages in other positions for which she is qualified, like real
estate property manager, or could become qualified with additional training or
education. Additionally, while Mr. Hebert testified that Kelli would have a difficult
time obtaining additional training or higher education because she would be limited
in her ability to take notes, Ms. Keller testified that universities and other institutions
of higher learning adhere to the Americans with Disabilities Act and allow
modifications for students with impairments which aid them in obtaining a degree.
We have given much consideration to the evidence regarding Kelli’s ability to
work, especially Dr. Henderson’s testimony that she can perform light to sedentary
work which does not require repetitious use of her right hand, and conclude that
$500,000.00 will adequately compensate her for her loss of earning capacity.
Kevin
Kevin has asserted a claim for loss of consortium. He testified regarding the
effect of Kelli’s injuries on him and their relationship, observing that since the
accident he has had to do much more work in the home than he did before the
accident. He observed that this is his responsibility as Kelli’s husband but admitted
that, at times, it is a burden on him and their relationship. Kevin also testified that he
and Kelli have tried not to allow the accident to disrupt their plans and had two more
21 children. However, he further testified that Kelli has changed because she is limited
in what she can do and is often depressed because of her limitations and pain.
The elements of a loss of consortium claim are loss of society, sex, service, and
support. Society includes general love, companionship, and affection that the spouse
loses as a result of the injury. “Support” is the lost family income that would go to
support the uninjured spouse. “Service” is the uncompensated work around the house
or educational help with the children which will, as a result of the injury, have to be
obtained from another source and at some price. Broussard v. Romero, 96-973
(La.App. 3 Cir. 2/26/97), 691 So.2d 1265, writ denied, 97-670 (La. 4/25/97), 692
So.2d 1092. We find that an award of $35,000.00 will fairly compensate Kevin for
his loss of consortium with Kelli.
Dillon
Dillon was two and one-half years old at the time of the accident. He witnessed
the accident and Kelli’s initial pain and disorientation. Kelli testified that the
deployment of the air bag created a lot of smoke, and led Dillon to believe that she
was on fire. Kelli further testified that, immediately after the accident, Dillon did not
understand why she could not pick him up and hold him as she did before the
accident. He now plays T-ball and is often upset because Kelli cannot play pitch and
catch with him. We find that the sum of $15,000.00 will fairly compensate Dillon for
Disposition
For the foregoing reasons, the judgment of the trial court granting the JNOV
is affirmed, and Mitsubishi’s writ application is granted. The general and special
damage awards set forth herein are awarded to the Lawsons. All costs of this
22 proceeding are assessed to Mitsubishi Motors North America and Tokio Fire and
Marine Insurance.